Ben Zygier 370.
(photo credit: Courtesy ABC)
A bill to be brought before the Ministerial Committee on Legislation today will
seek to bring about what we see as a long overdue reform of the courts’ powers
to drop gag orders in cases where the information protected by the order has
As MK Nachman Shai (Labor) – who is sponsoring the bill
along with MK Merav Michaeli (Labor) – said in an interview with The Jerusalem
Post, we live today in a world where the Internet often renders gag orders
irrelevant, with details of cases leaked on the World Wide Web far from the
jurisdiction of Israeli authorities. “Our laws cannot ignore reality,” he
In several recent high profile cases in which the courts issued gag
orders – such as those of singer Eyal Golan, who stood accused of statutory
rape; Anat Kamm, who was found guilty of leaking sensitive military documents to
Haaretz journalist Uri Blau; and Ben Zygier, an Australian-Israeli citizen, who
committed suicide in solitary confinement where he was held for unspecified
security crimes – the identities of those involved were known to the public, and
openly published online, even as the gag orders on their respective cases
remained in place.
This phenomenon reached a farcical height in the case
of Shmuel Duchner, the main witness in the Holyland real estate corruption trial
against former prime minister Ehud Olmert and 15 other defendants, when the
press was unable to reveal his identity even when reporting on Duchner’s
funeral, where the need to protect his identity had clearly been rendered
Shai and Michaeli’s bill seeks to redress this anachronistic
anomaly. It would require the courts to reconsider a gag order once it has been
brought to their attention that the information intended for protection had been
exposed and to weigh whether the order remained relevant.
It would also
give a representative of the press formal standing to argue at hearings for the
removal of the gag order and, moreover, require a hearing within seven days of
certain gag orders going into effect.
As Shai noted to the Post, “laws
are not meant to last eternally” and must reflect changing
Today’s reality is that it is no longer possible to keep a lid
on information just by preventing the major media outlets from publicizing
Having major media outlets reporting under gag order, while the
relevant information is freely available online, may perhaps make the media lose
face, but more important it makes the courts and police look ridiculous to the
extent that it can start to eat away at their credibility. This is too great a
danger and makes change in the law imperative. Indeed, the police and the
attorney-general are backing the initiative.
Gag orders could in theory
still work were the government to spend large amounts of time and money hunting
down violators on social media and other informal media and were it then to
bring criminal sanctions against them or hit them with heavy fines. Such
draconian moves would of course not be tolerated by the Israeli public. When the
cost in liberty becomes too high, the solution is inevitably going to be for the
courts to give up some control and let more gag orders fail. Thus, again, the
reform becomes imperative.
The bill will not eliminate gag orders and
will not reduce protection of identity in cases involving rape victims, minors
or other members of a protected class of persons. Gag orders will still be
issued, but the courts will be asked to apply a realistic test – as opposed to
philosophical-legalistic principles divorced from reality – to keep them in
place once the Internet has brought down the screen.